Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant company, “Qufaj Co. sh.p.k.”,
is an Australian-Albanian joint venture, established by decision no.
5883 of the Tirana District Court on 20 July 1992, with the object of
investing in the construction business.

It is acting before the Court through its Managing
Director, Mr Avenir Ballvora, an Albanian citizen born in 1957, who now
lives in Montauban (France).

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

The municipality of Tirana sold the applicant
company 15,788 square metres of land in a residential area in Tirana
by decision no. 165 dated 9 June 1992.

By decision no. 174 of 15 June 1992, the municipality
granted the applicant company planning permission to build five hundred
flats. A building permit was also required before the project could
start, but the municipality failed to decide the matter for a considerable
length of time, thus preventing the building works from getting under
way.

After the municipality had refused to grant a
building permit, the applicant company brought proceedings in the Tirana
District Court seeking compensation (60,000,000 leks) for its loss.
Its claim was dismissed by judgment no. 4064 of 23 June 1995.

On appeal, the Tirana Court of Appeal quashed
the first-instance judgment and ordered the municipality to pay the
applicant 60,000,000 leks (decision no. 1197 of 23 February 1996).

In the absence of an appeal by the municipality
to the Court of Cassation, the Court of Appeal’s judgment became final
and enforceable.

On 16 July 1996 the President of the Court of
Cassation, in a document addressed to the municipality, stated that,
after the entry into force of the new Code of Civil Procedure, he no
longer had the right to initiate a supervisory review of the legality
of lower court decisions.

On 16 July 1997 the applicant company requested
the Tirana District Court to issue a warrant for the execution of the
compensation award.

On 25 June 1998 the Tirana District Court rejected
a request by the municipality to review the merits of decision no. 5492
of 20 December 1994, there being no basis in either law or fact for
it to do so.

On 23 July 1997, in a document no. 704/gj dated
23 July 1997, the Enforcement Office notified the municipality that
it should execute the Court of Appeal decision by paying the applicant
company 60,000,000 leks. However, the municipality repeatedly refused
to comply, arguing that it had no budget for the execution of judicial
decisions.

At the same time, the Enforcement Office requested
the Exchequer and Budget Department of the Ministry of Finance (the
ultimate financial institution responsible for such payments) to comply
with the decision by providing the necessary funding (Article 589, paragraph
2, of the Code of Civil Procedure).

By documents nos. 2018/3 of 19 September 1997,
2018/5 of 7 November 1997, and 4670 of 22 September 1999, the Ministry
of Finance rejected the requests of the Enforcement Office, arguing
that either Article 589 of the Code of Civil Procedure was not applicable,
or that central funding was not possible under the State Budget Law.
It added that the municipality should contact the “District of Tirana
Branch of the Treasury”, specifying the fund from which the debt should
be paid and the part of the municipality’s budget to which it should
be allocated.

As the judgment was not executed, the applicant
company brought proceedings in the Constitutional Court, claiming that
local governmental institutions were obliged to guarantee the enforcement
of final judicial decisions, not to impede them.

The Constitutional Court rejected the applicant’s
complaint, stating that the “complaint [could] not be taken into consideration
because the enforcement of court decisions is outside the jurisdiction
of the Constitutional Court”.

B. Relevant domestic law

1. The Constitution

Article 42 § 2

“In the protection of his constitutional and
legal rights, freedoms and interests, or in defending a criminal charge,
everyone has the right to a fair and public hearing, within a reasonable
time, by an independent and impartial court established by law.”

Article 142 § 3

“State bodies shall comply with judicial decisions.”

Article 63 § 3

“The People’s Advocate has the right to make
recommendations and to propose measures when he finds violations of
human rights and freedoms by the public authorities.”

...

2. Instruction no. 1 issued by the Ministry
of Finance on 13 June 1997 pursuant to the Finance no.1 Act of 13 October
1997

Paragraph 7

“Payments deriving from judicial decisions
relating to the normal activity of budgetary institutions shall be authorised
by the Head of the Central Institution. At the same time, where the
damage for which the State is liable is the consequence of public officers
acting ultra vires or failing to act in accordance with his powers,
the Head of the Central Institution shall take administrative measures
and institute civil proceedings against them according to the degree
of their responsibility.”

3. The Decision of the Council of Ministers
no. 335 of 9 June 199

Paragraph 2 (e)

“The Ministry of Finance, through funds allocated
to it in the annual budget, shall comply with judicial decisions directly
related to the State’s budgetary obligations but not to the obligations
of budgetary institutions. Such decisions shall include:

...

(e) Judicial decisions expressly determining
the liability of the State for other reasons provided for by law.”

“Commercial companies registered before the
entry into force of this Act whose registered particulars and forms
do not comply herewith shall re-register no later than six months after
the entry into force of this Act. Any such company that fails to request
the re-registration or to present the requisite documents shall be automatically
unregistered from that date on. They may apply for a three-month extension
of time in which to comply with this obligation. Re-registered companies
shall retain all the rights they enjoyed before re-registration.”

5. The People’s Advocate Act (Law no.
8454, of 4.2.1999)

Article 25

Persons and Acts outside the Jurisdiction
of the People’s Advocate

...

“The following shall also be outside the jurisdiction
of the People’s Advocate:

(a) statutes and other legal acts; (b) military
orders to the Armed Forces; (c) court decisions.

Without prejudice to item (c) of this Article,
the People’s Advocate shall accept complaints, requests or notifications
of human-rights violations arising from the administration of the judiciary
and judicial procedures. The investigations of the People’s Advocate
shall not infringe the independence of the judiciary in deciding cases.”

COMPLAINTS

1. The applicant company complains under Article
6 § 1 of the Convention that the authorities’ failure to comply with
the final judicial decision in its case has hindered the effective enforcement
of its rights and thus rendered the requirement of a fair hearing meaningless.

2. The applicant also complains, under Article
13 of the Convention, of the lack of an effective remedy under domestic
law to challenge that failure. In that connection, the applicant refers
to the decision of the Constitutional Court, which declined to consider
its appeal, holding that it had no jurisdiction to do so.

3. The applicant, lastly, argues that Article
14 of the Convention, read in conjunction with Article 6 § 1 of the
Convention, has been violated by the Albanian authorities, in that it
was treated differently to other creditors in similar cases without
justification.

THE LAW

The applicant company complains under Articles
6 § 1, 13 and 14 of the Convention of the authorities’ refusal to
execute the judgment of the Tirana Court of Appeal of 23 February 1996.
It states that, as a result, it had no effective domestic remedy allowing
it to assert its rights.

The relevant part of Article 6 § 1 provides:

“1. In the determination of his civil rights
and obligations ... everyone is entitled to a fair hearing ... by a[n]
tribunal ... .”

Article 13 states:

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

Article 14 provides as follows:

“The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status.”

i)The Government contend that the company has not exhausted domestic
remedies. They argue that the applicant has failed to raise the issue
with the People’s Advocate Office (Ombudsperson) or, in accordance
with Law no. 8812 of 17 May 2001, with the Enforcement Office. The Government
submit that the law provides that, in the event of failure to comply
with a judicial decision, the Enforcement Office shall impose a fine
of 50,000 leks (350 Euro) on the judgment debtor. Accordingly, the applicant
has failed to exhaust this new remedy.

The company challenges the effectiveness of each
of the two remedies referred to by the Government. As regards a claim
before the People’s Advocate’s Office (Ombudsperson), it argues
that it could not provide an effective remedy within the meaning of
the Convention. It further argues that the Enforcement Office’s power
to impose a fine on the judgment debtor cannot achieve the applicant’s
principal objective, which is the execution of the judgment of the Tirana
Court of Appeal.

Consequently, the applicant submitted that the
Government’s statements were unsubstantiated.

The Court reiterates that the rule of exhaustion
of domestic remedies referred to in Article 35 § 1 of the Convention
obliges applicants to use the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain redress
for the breaches alleged. The existence of the remedies must be sufficiently
certain, in practice as well as in theory, failing which they will lack
the requisite accessibility and effectiveness. Article 35 § 1 also
requires that the complaints intended to be brought subsequently before
the Court should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal requirements laid
down in domestic law, but not that recourse should be had to remedies
which are inadequate or ineffective (see Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey,
no. 21893/93, §§ 65-67, ECHR 1996-IV).

As regards the possibility of applying to the
Ombudsperson, the Court observes that, while being an authority independent
from the executive, the Ombudsperson cannot take enforceable decisions
vis-à-vis governmental authorities (Law no. 8454 of 4 February 1999).
An application to the Ombudsperson cannot therefore be regarded as a
remedy satisfying the requirements of Article 35 § 1.

The Court reiterates that Article 35 § 1 of
the Convention requires the exhaustion of domestic remedies, but there
is no obligation under this provision to have recourse to remedies which
are inadequate (see Valasinas v. Lithuania, no. 44558/98, 14.3.2000 (dec.)). In
the Valasinas case the Court found that a petition to the Ombudsperson
did not constitute an effective remedy within the meaning of Article
35 § 1 (ibid.).

As regards the appeal to the Enforcement Office
in accordance with Law no. 8812 of 17 May 2001, the Court notes that
the applicant complained about the refusal of the executive authorities
to comply with the orders of the courts and the bailiffs. Therefore,
such an appeal would not have enabled the applicant company to have
the judgment in its favour executed. Furthermore, the Court notes that
the applicant company obtained an execution warrant in respect of the
judgment of 23 February 1996, in accordance with the requirements of
domestic civil procedure, but the bailiffs were unable to enforce it.
Consequently, the Court concludes that such an action would have been
ineffective.

The Court finds that the remedies referred to
by the Government were either unavailable or
inadequate to secure redress for the alleged breaches. Consequently,
this preliminary objection must be dismissed.

ii)The Government contend that the applicant company is not the
company that is entitled to execute the relevant judgment. Qufaj Co.
sh.p.k., the claimant in the proceedings before the national authorities,
was registered as a commercial company on 2 July 1992, following a decision
of the Tirana District Court, and was formed by Mr Qufaj, Chairman,
and Mr Ballvora, its Managing Director and Legal Representative.

Furthermore, pursuant to the Commercial Companies
Act (Law no. 7638/92) and the Commercial Register and Companies Registration
Act (Law no. 7667/93), commercial companies were required to re-register,
within six months of 1 January 1993, failing which their registration
would lapse.

In the instant case, according to the registration
office document produced by the Government, Qufaj Co. sh.p.k did not
re-register. Consequently, the Government claim that its registration
has automatically lapsed.

As indicated in decision no. 17369/97 of the
Tirana District Court, the company was not officially re-registered
until 1997. According to that decision, the management of the Qufaj
Co. sh.p.k. company is composed of Mr Ballvora, Chairman and Managing
Director, and by Mr Qufaj, Partner.

According to the Government, the “new” Qufaj
Co sh.p.k, the applicant before the Court, is not the same company as
that which was a party to the national proceedings, not only because
the company did not officially exist between 1993 and 1997, when it
was re-registered, but also because of the new composition of its management.

In the light of the foregoing, the Government
argue that the Managing Director of the company has no authority to
represent a company which is no longer registered, before either the
Albanian authorities or the Court. Consequently, as the “old” company
ceased to exist in 1993, the applicant company has no standing as a
“victim”, as required by Article 34 § 3 of the Convention.

The applicant rejects that argument. It claims
that the Tirana Court of Appeal rejected that objection. Furthermore
the legislation referred to by the Government applies to companies that
have failed to comply with the registration formalities, not to the
applicant company. Accordingly, its registration had not lapsed, as
the Government maintained. In addition, the re-registration of 1997
was a consequence of the reorganisation of the company following a change
in its financial circumstances.

Consequently, the applicant argues that the Government’s
second preliminary objection is unsubstantiated as well.

The Court reiterates that the violations alleged
by the applicant company concern the failure to comply with the judgment
of 23 February 1996. The Albanian authorities delivered that decision
after the laws mentioned by the Government came into force. In that
connection, the Court considers that the Government’s primary objection
relating to the applicant’s lack of standing as a victim is
irrelevant, because the material facts occurred before the obligation
to re-register came into force. Consequently, the applicant is a “victim”,
within the meaning of Article 34 of the Convention.

Moreover, as Mr Ballvora was and remains the
Manager Director of “both” companies, his capacity to act as the
legal representative of both companies is indisputable.

Consequently, the Court considers that the above
objection must likewise be dismissed.

b) On the merits, the applicant claims that the authorities’
refusal to comply with the judgment of the Tirana Court of Appeal of
23 February 1996 has hindered the effective enforcement of its rights,
and thus rendered the requirement of Article 6 § 1 meaningless.

The Government observe that the final judgment
was not complied with as a result of objective circumstances, such as
a lack of funds and confusion over the roles of the respective Albanian
authorities. Furthermore, in view of the legislative and political chaos,
and the economic and social situation in Albania, compliance with the
judgment was quite impossible. Moreover, the State budget was and remains
insufficient to fulfil all the demands made on it in respect of salaries,
health-care, education and infrastructure.

Having regard to the applicant’s complaints
and the Government’s observations, the Court finds that serious questions
of fact and law arise, the determination of which should depend on an
examination of the merits. This part of the application cannot be regarded
as manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible have been
established.

2. The applicant company further argues that it had no
effective remedy before a national authority for the failure to enforce
the judgment of 23 February 1996. In its view, there has, accordingly,
been a violation of Article 13 of the Convention. In this context, it
refers to the Constitutional Court’s decision declining jurisdiction
to hear its appeal.

The Government maintain that under the case-law
of the Albanian Constitutional Court, the requirement of a “fair trial”,
within the meaning of Article 131/f of the Albanian Constitution, does
not extend to the execution of the decision.

The Court considers that Article 6 § 1 of the
Convention takes precedence as the lex specialis for the issues of non-enforcement of judgments,
so that it is unnecessary to examine the issue under Article 13 separately
(see Jasiuniene v. Lithuania, no. 41510/98, § 32, 6 March 2003).

3. The applicant, lastly, maintains that the Albanian
authorities have breached Article 14, read in conjunction with Article
6 § 1, of the Convention, in so far as the failure to comply with the
judgment of the Tirana Court of Appeal was a consequence of its members’
political opinions. It maintains that the Albanian authorities preferred
other creditors of a different political or social background.

The Court finds that the applicant company has
failed to substantiate its allegation that it was discriminated against
as a private creditor in comparison with other creditors.

It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.